392. Rabbis on divorce. The school of the Rabbi Shammai said, "A man must not repudiate his wife unless he find in her actual immodesty." Rabbi Jochanan said, "Repudiation is an odious thing." Rabbi Eliezer said, "When a first wife is put away the very altar sheds tears."1258

393. The early Roman mores about marriage were very rigid and pitiless. It was in the family, and therefore under the control of the head of the family. No law forbade divorce, because such a law would have been an invasion of the authority of the male head of the family, but the censors, in the name of public opinion, long prevented any frivolous dissolution of marriage. Few divorces occurred, and then only for weighty reason, after the family council had found them sufficient. There was some stain attaching to a second marriage, after the death of the first spouse. Even men were subject to this stain.1259

394. Pair marriage and divorce. With the rise of pair marriage came divorce for the woman, upon due reason, as much as for the man. Hence freer divorce goes with pair marriage. Such must inevitably be the case, if it be admitted that any due reason for divorce ever can exist. The more poetical and elevated the ideas are which are clustered around marriage, the more probable it is that experience will produce disappointment. If one spouse enters wedlock with the belief that the other is the most superlative man or woman living, the cases must be very few in which disappointment and disillusion will not result. Moreover, pair marriage, by its exclusiveness, risks the happiness of the parties on a very narrow and specific condition of life. The coercion of this arrangement for many persons must become intolerable.

In the ancient German law there was absolute freedom of divorce by agreement. The pair could end the relation just as they formed it. In the laws of the German nations there was little provision for divorce upon the complaint of the woman. The law of the Langobards allowed it to her for serious bodily injury.1260

395. Divorce in the Middle Ages. It is pretended that the mediæval church allowed no divorce. This is utterly untrue. Under the influence of asceticism the church put marriage under more and more arbitrary restrictions, going far beyond any rules to be found in the Scriptures, or in the usages of the early church. Divorce was made more and more difficult. These two tendencies contradicted each other, for the greater the restrictions on marriage, the greater the probability that any marriage would be found to have violated one of them, and therefore to be ab initio void. This set it aside more absolutely than any divorce a vinculo could undo it. Also, when there was an ample apparatus of dispensation by which the rich and great could have their marriages dissolved, by the use of money or political power, the "law of the church" was no law. Still further, the mediæval church, while it had a doctrine of perfection and ideality for marriage, had also a practical system of concession to human weakness, by which it could meet cases of unhappy marriage. In the canon law, divorce and remarriage of the innocent party has been allowed to the man, in case of adultery, physical incapacity, leprosy, desertion, captivity, disappearance, and conspiracy to murder the husband, on the part of the wife; and to the wife, when the husband's misconduct rendered living with him impossible. However, a dispensation from the ecclesiastical authority was required.1261

396. The point of this is that no society ever has existed or ever can exist in which no divorce is allowed. In all stages of the father family it has been possible for a man to turn his wife out of doors, and for a wife to run away from her husband. They divorce themselves when they have determined that they want to do so. It would be an easy solution of marriage problems to assert that the society will use its force to compel all spouses who disagree, or for whom the marriage relation has become impossible through the course of events, nevertheless to continue to live in wedlock. Such a rule would produce endless misery, shame, and sin. There are reasons for divorce. Adultery is recognized as such a reason in the New Testament. It is a rational reason, especially under pair marriage. There are other rational reasons. Some of them are modern forms of the reasons allowed in the canon law, as above cited. The exegesis of the New Testament is not simple. It does not produce a simple and consistent doctrine, and therefore inference and deduction have been applied to it. 2 Cor. vi. 14 contradicts 1 Cor. vii. 12. The mores decide at last what causes shall be sufficient. The laws in the United States once went very far in an attempt to satisfy complaining married people. They were no better satisfied at last than at first. Scandalous cases produced a conviction that "we have gone too far," and the present tendency is to revoke certain concessions. The fact that a divorce has been legally obtained does not satisfy some former friends of the divorced so that they will continue social intimacy. A code grows up to fit the facts. Sects help to make such codes. Perhaps they make a code which is too stringent. The members of the sect do not live by it. They seek remarriage in other, less scrupulous sects, or by civil authority, or they change domicile in order to get a divorce. Thus the mores control. When the law of the state or of ecclesiastical bodies goes with the mores it prevails; when it departs from the mores it fails. The mores are also sure to act in regard to a matter which presents itself in a large class of cases, and which calls for social and ethical judgments. At last, comprehensive popular judgments will be formed and they will get into legislation. They will adjust interests so that people can pursue self-realization with success and satisfaction, under social judgments as to the rules necessary to preserve the institutions of wedlock and the family. The pursuit of happiness, either in the acquisition of property or in the enjoyment of family life, is only possible in submission to laws which define social order, rights, and duties, and against which the individual must react at every point. It is the mores which constantly revise and readjust the laws of social order, and so define the social conditions within which self-realization must go on.

397. Refusal of remarriage. The laws of every State in the United States, except South Carolina, allow marriage by a minister of religion or by magistrates. This does not mean that the legislatures meant to endow ministers of religion with authority to say who may marry and who may not. Ministers who agree not to marry divorced persons assume authority which does not belong to them. In England, with an established church, the fact has recently been ascertained that a clergyman cannot refuse to marry persons who may marry by the civil law as it stands. With us the number of sects and denominations is such that no hardship arises if one sect chooses to adopt stricter laws for the sake of making a demonstration or exercising educational influence, and decides to run the risk of driving its own members to other sects. What the next result of such action will be remains to be learned.

398. Child marriage. Child marriage illustrates a number of points in regard to the mores, especially the possibility of perversity and aberration. Wilutzky1262 thinks that child marriage amongst savages began in the desire of a man to get a wife to himself (monandry) out of the primitive communalism, without violating the customs of ancestors. Girls of ten or twelve years are married to men of twenty-five or thirty on the New Britain Islands. The missionary says, "The result of such an early union, for the girl, has been dreadful."1263 On Malekula girls are married at six or eight.1264 Similar cases are reported from Central and South America where girls of ten are mothers.1265 Rohlfs reports mothers of ten or twelve at Fesan.1266 The Eskimo practice child betrothal, so that wedlock begins at once at puberty.1267 Schwaner reports,1268 from the Barito Valley, that children are often betrothed and married by the fathers when the latter are intoxicated. The motives of the match are birth, kinship, property, and social position, and the marriage is hastened, lest the parents should see their plans to satisfy these motives frustrated by the children if they should delay. The intimacy of the children is left to chance. Wilken says that child marriage seems to be, in the Dutch East Indies, an exercise of absolute paternal authority, especially seeing that they have marriage by capture. The father wants to secure, in time, the realization of plans which he has made. Especially, the purpose is to make the man take the status-wife appointed for him by the marriage rule,—his mother's brother's daughter. Wilken also explains child betrothal and marriage by the fact that girls have entire liberty until betrothed, and the future husband wants to put an end to this. Girls are often betrothed at birth and married at six, although they remain with their parents. In some parts of the East Indies the custom is declining; in others it is extinct. In some places it continues, although marriage by capture is extinct. Where marriage by capture exists, the reason for child marriage is the fear that the girl may be stolen by another than the desired husband.1269

399. Child marriage in Hindostan. By the laws of Manu1270 a man may give his daughter in marriage before she is eight years old to a man of twenty-four, or a girl of twelve to a man of thirty, and he loses his dominion over her if he has not found a husband for her by the time that she might be a mother; yet intercourse before puberty is especially forbidden.1271 The Hindoos, including Mohammedans, practice child marriage and cling to it, in spite of the efforts of the English to dissuade them from it, and in spite of the opinion of their own most enlightened men that it is a harmful custom. It is deeply rooted in their mores. The modern Hindoo father or brother considers it one of the gravest faults he can commit to allow a daughter or sister to arrive at puberty (generally eight years) before a husband has been found for her. It is a disgrace for a family to have in it an unmarried marriageable girl. What is proper is that, from five to sixteen days after puberty, the previously married husband shall beget with her a child in a solemn ceremonial which is one of the twelve (or sixteen) sacraments of Hindoo life.1272 The idea of child marriage was that the woman should be already married to her chosen husband, so that she might be given to him at the proper time.1273 Moreover, "marriage completes, for the man, the regenerating ceremonies, expiatory, as is believed, of the sinful taint which every child is supposed to contract in the mother's womb; and being, for sudras and for women, the only [ceremony for this purpose] which is allowed, its obligatoriness is, as to the latter, one of the ordinances of the Veda."1274

400. The wife of the missionary Gehring was present at the marriage of a girl of ten to an adult man amongst the Tamil Mohammedans. The story of the child's shrinking terror is very pathetic. When her veil was withdrawn she fainted from nervousness and excitement. Those present showed no pity for her, but crowded around to enjoy the opportunity of gazing at her. They saw no reason why she was to be pitied.1275

401. If a girl has had no husband provided for her by her responsible male relative, she may act for herself, but then she forfeits her share in the family property. She may be abducted with impunity. In Manu1276 it is said that three years must elapse before she gets the right of self-disposition. The right is long since a dead letter. The "Law of Manu" can lose its authority where it is favorable to women! or when it runs counter to the mores, for Hindoo women have no training to take up self-disposition, if the case occurs.1277 Female virtue is rated low, and must be secured by marriage. Independent action by a boy and girl is against the mores and could only lead to inferior forms of marriage, by love or capture.1278 Finally, religion bears its share in furnishing motives for child marriage. The souls of ancestors cannot stay in heaven unless there are male descendants to keep up the sacrifices. It is, therefore, impossible to provide male descendants too soon. Among the Tamil-speaking Malaialis of the Kollimallais hills a man takes an adult wife for his little son, and with her he begets a son who will perform this religious duty for himself and his son. This goes on from generation to generation.1279

402. Nevertheless, it is held to be proved that in ancient India child marriages were unknown and that women were often far beyond puberty before they were married. The human husband was also held to be the fourth. Three gods had preceded him in each case.1280 The custom of child marriage has now spread to the lowest classes, and in the lowlands of the Ganges cohabitation follows at once upon child marriage, with very evil results on the physique of the population.1281

There was child marriage in Chaldea 2200 years B.C.1282

403. Child marriage in Europe. The marriage of children was not in the mores of the ancient Germans. The mediæval church allowed child marriage for princes, etc. The motive was political alliance, or family or property interest.1283 The fable was that Joseph was an old man and the Virgin Mary only a girl. This story was invented to make the notion of a virgin wife and mother easier. The marriage was only a child marriage. In England, from the end of the thirteenth to late in the seventeenth century, cases of child marriage occurred, at first in the highest classes, later in all classes, and finally most frequently in the highest and lowest classes. In Scotland premature marriages were so common that, in 1600, they were forbidden, the limits being set at fourteen and twelve years for males and females respectively. The chief motive was to avoid feudal dues on the part of tenants in chief of the crown, if the father should die and leave infants who would become wards liable to forced marriages or to mulcts to avoid the same.1284

404. Child marriage is due, then, to the predominance of worldly considerations in marriage, especially when the interests considered are those of the parents, not of the children; also to abuse of parental authority through vanity and self-will; also to superstitious notions about the other world and the interests of the dead there; also to attempts, in the interest of the children, to avoid the evil consequences of other bad social arrangements.

405. Cloistering. The custom of cloistering women has spread, within historic times, from some point in central Asia. The laws of Hammurabi show that, 2200 years B.C., men and women, in the Euphrates Valley, consorted freely and equally in life. Later, in the Euphrates Valley, we find the custom of cloistering amongst the highest classes. It became more and more vigorous amongst the Persians and spread to the common people. It was not an original custom of the Arabs and was not introduced by the Mohammedan religion. It was learned and assumed from the Persians.1285 Seclusion of women, to a greater or less degree, has prevailed in the mores of many nations. In fact, there is only a question of degree between an excessive harem system and our own code of propriety which lays restraints on women to which men are not subject. The most probable explanation of the customs of veiling and cloistering is that they are due to the superstition of the evil eye. Pretty women attracted admiration, which was dangerous, as all prosperity, glory, and preëminence were dangerous under that notion. When pretty women were veiled or secluded, the custom was sure to spread to others. The wives and daughters of the rich and great were secluded in order to shield them from easy approach, and to pet and protect them. This set the fashion which lesser people imitated so far as they could. The tyranny of husbands and fathers also came into play, and another force acting in the same direction was the seduction exerted on women themselves by the flattering sense of being cared for and petted. Lane1286 tells us that "an Egyptian wife who is attached to her husband is apt to think, if he allows her unusual liberty, that he neglects her, and does not sufficiently love her; and to envy those wives who are kept and watched with greater strictness." "They look on the restraint [imposed by husbands] with a degree of pride, as evincing the husband's care for them, and value themselves on being hidden as treasures." Women who earn their own living have to go into the streets and the market and to come in contact with much from which other classes of women are protected. The protected position is aristocratic, and it is consonant with especial feminine tastes. The willingness to fall into it has always greatly affected the status of women.

406. Second marriages. Widows. Second marriages affect very few people beyond those immediately concerned, and they are not connected with any social principle or institution so as to create what is sometimes called a "societal interest," unless there is current in the society some special notion about ghosts and the other world. Nevertheless, the bystanders have, until very recent times, pretended to a right to pass judgment and exert an influence on the remarriage of widows, and less frequently of widowers. The story of the status of widows is one of the saddest in the history of civilization. In uncivilized society a widow is considered dangerous because the ghost of her husband is supposed to cleave to her. Under marriage by capture or purchase she is the property of her husband, and, like his other property, ought to accompany him to the other world. When she is spared she has no rational place in the society; therefore widows were a problem which the mores had to solve. In no other case have societies shown so much indifference to misfortune and innocent misery. If a widow has value for any purpose, she falls to the heir and he may exploit her. On the Fiji Islands a wife was strangled on her husband's grave and buried with him. A god lies in wait on the road to the other world who is implacable to the unmarried. Therefore a man's ghost must be attended by a woman's ghost to pass in safety.1287 Mongol widows could find no second husbands, because they would have to serve their first husbands in the next world. The youngest son inherited the household and was bound to provide for his father's widows. He could take to wife any of them except his own mother, and he did so because he was willing that they should go to his father in the next world.1288 In the laws of Hammurabi the widow was secured a share in her husband's property and was protected against the selfishness of her sons. If she gave up to her sons what she had received from her husband, she could keep what her father gave her and could marry again. In later Chaldea annuities were provided for widows by payments to temples.1289 In the Mahabharata the morning salutation to a woman is, "May you not undergo the lot of a widow."1290

407. Burning of widows. It appears certain that the primitive Aryans practiced the burning of widows, perhaps by the choice of the widows, and that the custom declined in the Vedic period of India. The burning of widows and the levirate could not exist together.1291 As Manu1292 gives rules for the behavior of widows (not name any man but the deceased husband; not remarry), he assumes that they will live. The custom of suttee was strongest in the lower castes.1293 Akbar, the Mogul emperor, forbade suttee about 1600.1294 He acted from the Mohammedan standpoint. His ordinance had no effect on the usage. The English put an end to the custom in 1830. This did not affect the native states, where the latest instance reported took place in 1880.1295 A man who knows India well says that it was no kindness to widows to put a stop to suttee because, if they live on, their existence is so wretched that death would be better. Wilkins1296 quotes a Hindoo widow's description of the treatment she received, which included physical abuse and moral torture. She was addressed as if she was to blame for the death of her husband. The head of a widow is shaved, although Hindoo women care very much for their hair. She is allowed but one meal a day and must fast frequently. She is shunned as a creature of ill omen. Inasmuch as girls are married at five or six, all this may happen to a child of ten or twelve, if her husband dies, although she never has lived with him. In 1856 the English made a law by which widows might remarry, but the higher classes very rarely allow it. If they do allow it, the groom is forced to marry a tree or a doll of cotton, so that he too may be widowed. The mores resist any change which is urged, although not enforced, by people of other mores. The reforms proposed in the treatment of widows have no footing at all in the experience and the judgment of Hindoos, if we except a few theists in Calcutta, and they have never taken a united and consistent position. Monier-Williams1297 describes the case of a man who married a widow. He was boycotted so completely that all human fellowship was denied him. He had to go to a distant place and take a position under the government. Among the lower castes of the Bihari Hindoos a widow may marry the younger brother of her deceased husband, to whom her relation is always one of especial intimacy and familiarity.1298

408. Difficulty of reform. It appears that the difficulty about the remarriage of widows is due to the fact that it runs counter to fundamental religious ideas. The Hindoo reformers are charged with using forms of wedding ceremony which are inconsistent with facts. Some widows are virgins, but there is not always a father or mother to give them away by the formula of "virgin gift." The women all have a notion, taken from the words of a heroine in the Mahabharata, that a woman can be given but once.1299 They cling to the literal formula. By the form of first marriage also a woman passes into the kin of her husband for seven births (generations), the limit of degrees of consanguinity. It is irreligious and impossible to change the kin again, because consequences have been entailed which run seven generations into the future.1300 This is all made to depend, not on the consummation of the marriage, but on the wedding or even betrothal. The census shows that the taboo on the remarriage of widows and the custom of child marriage extend and increase together.1301 Where husbands are scarce girls are married in childhood in order to secure them, and widows are not allowed to remarry.1302 By the remarriage of widows rajpoots and rajpoot families lose their rank and precedence.1303 In Homer the remarriage of men is rare, and only one stepmother is mentioned.1304 The prejudice against second marriages continued amongst the Greeks, even for men, for whom second marriage was restrained, in some parts of Greece by political disabilities, if the man had children. The reason given was that a man who had so little devotion to his family would have little devotion to his country.1305 In the classical period widows generally married again. Sometimes the dying husband bequeathed his widow. In later times some widows contracted their own second marriages.1306 Marcus Aurelius would not take a second wife as a stepmother for his children. He took a concubine. Julian, after the death of his wife, lived in continence.1307 On Roman tombstones of women the epithet "wife of one husband" was often put as praise.1308

409. Widows and remarriage in the Christian church. The pagan emperors of Rome encouraged second marriages as they encouraged all marriage, but the Christian emperors of the fourth century took up the ascetic tendency. About 300 the doctrine was, "Every second marriage is essentially adultery."1309 Augustine, in his tract on "Continence," uttered strong and sound doctrine about self-control and discipline of character. In the tract on the "Benefit of Marriage" he defended marriage, intervening in a controversy between Jerome and Jovinian, in which the former put forth the most extravagant and contradictory assertions about virginity. Augustine's formula is: "Marriage and fornication are not two evils of which the second is worse, but marriage and continence are two goods, of which the second is better." Although this statement is very satisfactory rhetorically, it carries no conclusion as to the rational sense of regulation of the sex passion, or as to the limit within which regulation is beneficial. Augustine laid great stress on 1 Cor. vii. 36. In a tract on "Virginity" he glorified that state according to the taste of the period. In a tract on "Widowhood" (chaps. 13 and 14), he repudiated the extreme doctrine about second and subsequent marriages, but he exhorted widows to continence. The church fathers, like the mediæval theologians, had a way of admitting points in the argument without altering their total position in accordance with the admissions or concessions which they had made. The positions taken by Augustine in these tracts about the sex mores cannot be embraced in an intelligible and consistent statement. "At a period of early, although uncertain, date the rule became firmly and irrevocably established, that no digamus, or husband of a second wife, was admissible to Holy Orders; and although there is no reason for supposing that marriage after taking orders was prohibited to a bachelor, it was strictly forbidden to a widower."1310 So it came about that, inasmuch as marriage was, in any case, only a concession and a compromise, and in so far a departure from strict rectitude, a second marriage was regarded with disfavor, and any subsequent ones were regarded with reprobation which increased in a high progression. This has remained the view of the Eastern church, in which a fourth marriage is unlawful. The Western church has not kept the early view, and has set no limit to remarriage, but orthodox and popular mores have frowned upon it after the second or, at most, the third. In Arabia, before the time of Mohammed, widows were forced into seclusion and misery for a year, and they became a class of forlorn, almost vagabond, dependents. It was a shame for a man if his mother contracted a second marriage.1311 In the Middle Ages popular reprobation was manifested by celebrations which were always grotesque and noisy, and sometimes licentious. They were called charivaris. They were enacted in case of the remarriage of widows and sometimes in the case of widowers. They are said to have been a very ancient custom in Provence.1312 This might mean that opposition to second marriages was due to Manichæan doctrines which were widely held in that region. The customs of popular reprobation were, however, very widespread, and nowadays amongst us the neighbors sometimes express in this way their disapproval of any sex relations which are in any way not in accord with the mores. In the Salic law it was provided that any woman who married a second time must do so at night.1313 The other laws of the barbarian nations contain evidence of disapproval.1314 Innocent III ruled, in 1213, that a man did not incur the ecclesiastical disabilities of second marriage, "no matter how many concubines he might have had, either at one time or in succession."1315 The mediæval coutumes of northern France are indifferent to second marriages.1316 The ancient German custom approved of the self-immolation of a widow at her husband's death, but did not require it. The remarriage of widows was not approved and the widows did not desire it. This was a consequence of the ancient German notion of marriage, according to which a wife merged her life in that of her husband for time and for eternity.1317 The usage, however, was softened gradually. The widow got more independence, and more authority over her children and property, over the marriage of her daughters, and at last the right to contract a second marriage after a year of mourning.1318 In England, in the eleventh century, a widow's dower could not be taken to pay her husband's taxes, although the exchequer showed little pity for anybody else. The reason given is that "it is the price of her virginity."1319 The later law also exempted a wife's dower from confiscation in the case of any criminal or traitor.1320 In the seventeenth and eighteenth centuries, in France, "a period in which, perhaps, people supported widowhood less willingly than in any other," the actual usages departed from the acknowledged standards of right and propriety.1321 The same was true in a greater or less degree elsewhere in Europe, and the widowed probably destroyed the prejudice against remarriage by their persistency and courage in violating it. In the American colonies it was by no means rare for a widow or widower to marry again in six or even in three months.

410. Remarriage and other-worldliness. It is evident that the customs in regard to the treatment of widows, second marriages, etc., are largely controlled by other-worldliness. If the other world is thought of as close at hand, and the dead as enjoying a conscious life, with knowledge of all which occurs here, then there is a rational reluctance to form new ties by which the dead may be offended. If the other world and its inhabitants are not so vividly apprehended, the living pursue their own interests, and satisfy their own desires.

411. Tree marriage. In several cases which have been presented, we have seen how the folkways devise means of satisfying interests in spite of existing (inherited) institutions which bear injuriously on interests. A remarkable case of this kind is tree marriage amongst the Brahmins of southern India. The established opinion is that a younger brother ought not to marry before an older one. The latter may be willing. That is immaterial. The device is employed of marrying the older brother to a tree, or (perhaps the idea is) to a spirit which resides in the tree. He is then out of the way and the younger brother may marry.1322

412. The Japanese woman. The Japanese woman has been formed in an isolated state, of a militant character, with strong and invariable folkways. "Before this ethical creature, criticism should hold its breath; for there is here no single fault, save the fault of a moral charm unsuited to any world of selfishness and struggle.... How frequently has it been asserted that, as a moral being, the Japanese woman does not seem to belong to the same race as the Japanese man!... Perhaps no such type of woman will appear again in this world for a hundred thousand years: the conditions of industrial civilization will not admit of her existence.... The Japanese woman can be known only in her own country,—the Japanese woman as prepared and perfected by the old-time education for that strange society in which the charm of her moral being,—her delicacy, her supreme unselfishness, her childlike piety and trust, her exquisite tactful perception of all ways and means to make happiness about her,—can be comprehended and valued.... Even if she cannot be called handsome according to western standards, the Japanese woman must be confessed pretty,—pretty like a comely child; and if she be seldom graceful in the occidental sense, she is at least in all her ways incomparably graceful: her every motion, gesture, or expression being, in its own oriental manner, a perfect thing,—an act performed, or a look conferred, in the most easy, the most graceful, the most modest way possible.... The old-fashioned education of her sex was directed to the development of every quality essentially feminine, and to the suppression of the opposite quality. Kindliness, docility, sympathy, tenderness, daintiness,—these and other attributes were cultivated into incomparable blossoming. 'Be good, sweet maid, and let who will be clever; do noble things, not dream them, all day long,'—those words of Kingsley really embody the central idea in her training. Of course the being, formed by such training only, must be protected by society; and by the old Japanese society she was protected.... A being working only for others, thinking only for others, happy only in making pleasure for others,—a being incapable of unkindness, incapable of selfishness, incapable of acting contrary to her own inherited sense of right,—and in spite of this softness and gentleness ready, at any moment, to lay down her life, to sacrifice everything at the call of duty: such was the character of the Japanese woman."1323